D. P. Wadhwa,j. ( 1 ) BY this order we propose to dispose of twoapplications, one by the petitioner (CM 5297/88) and the second by the 4threspondent (CM 5535/88 ). ( 2 ) THE petitioner filed the writ petition challenging the order of theappropriate atuhority dated 7. 11. 1988 made under sub-section (1) or Section 269ud of the Income Tax Act 1961 (for short the Act ). The appropriate authority is constituted under S. 269 UB of the Act. By this orderthe appropriate authority held that the property in question was fit forpurchase by the Central Government. The property is a plot of land bearingno. 22, situated at Road No. 61, punjabi Bagh, New Delhi, and measures552. 78 sq. yds. The petitioner as purchaser and the 4th respondent as theseller entered into an agreement for transfer of this property for a consideration of Rs. 28,19,178. 00 and the purchaser at that time paid a sumof Rs. 10 lakhs to the 4th respondent. A statement of transfer of immovableproperty as required under Sec. 269uc was filed before the appropriateauthority, in Form 37-1 as perscribed, which on examination of the samecame to the conclusion that the property be purchased by the Centralgovernment at an amount equivalent to the amount of apparent consideration which was the consideration for which the 4th respondentagreed to sell the property to the petitioner. This order is under challengein the Act writ petition. The petitioner has prayed that Chap. XXC of thecontaining Ss. 269u to 269 UO be declared unconstitutional and thatrespondents Nos. 1, 2 and 3 be restrained from taking any action in termsof the order passed under S. 269ud (1) of the Act by the appropriateauthority. These are four respondents. The first is the Central Government,second is the appropriate authority and the third is the Central Board ofdirect Taxes. The 4th respondent, as noted above, is the owner of theproperty in question. ( 3 ) WHEN the writ petition came up for admission. Rule D. B. , wasissued and by way of interim order it was directed that respondents Nos. 1to 3 would not pay the consideration till further orders and status quowas also directed to be maintained. This was on the application of thepetitioner. Then the 4th respondent also filed an application. Rule D. B. , wasissued and by way of interim order it was directed that respondents Nos. 1to 3 would not pay the consideration till further orders and status quowas also directed to be maintained. This was on the application of thepetitioner. Then the 4th respondent also filed an application. He prayed formodification of the interim orders and stated that he was prepared to sellthe property either to the Central Government or to the petitioner in termsof the agreement to sell dated 10. 9. 1988 which he had entered into withthe petitioner and on receipt by him of the balance of the sale consideration. In the alternative, he also prayed that the petitioner be directed to payinterest at the rate of 24% per annum on the balance of the considerationif he is not directed to be paid the balance of the sale consideration. ( 4 ) IT may be noted that a number of writ petitions challenging theconstitutional validity of Chap. XXC of the Act are pending in this courtand in those writ petitions various interim orders have been passed depending upon the facts and circumstances of each case. These orders were broughtto our notice during the course of arguments on the present two applications. Normally, directions have been issued:- (1) staying the operation of the order of the appropriateauthority under S. 269ud (1) of the Act; (2) requiring the income-tax authorities not to pay eitherto the seller or the purchaser the amount of the purchase price ofthe property until further orders; (3) in consequence thereof, directing that provisionsregarding limitation as contained in S. 269 UG and 269uh shallnot operate against the Income Tax Department; and (4) restraining the purchaser and the seller from puttingup any construction on the property or from transferring, alienatingor parting with possession of the same or from creating anyencumbrance on the property during the pendency of the writpetition. In one such case, i ( was also observed that the questionof payment of interest to the seller was left open and that issuewould be decided at the time of the disposal of the writ petition. Yet in another case. it appears that the seller was paid certainfurther sum where the possession had passed to the buyer and thecourt, while restraining the buyer from making any constructionon the property etc. , had permitted him to get the property whitewashed. plastered etc. at his own risk and responsibility. Yet in another case. it appears that the seller was paid certainfurther sum where the possession had passed to the buyer and thecourt, while restraining the buyer from making any constructionon the property etc. , had permitted him to get the property whitewashed. plastered etc. at his own risk and responsibility. Thedepartment was, however, given right to inspect property aftergiving notice to the petitioner, the purchaser. ( 5 ) MR. Harbans Lal, appearing for the seller, submitted that he wasnot a necessary party in these proceedings as he did not challenge theimpugned order of the appropriate authority. He said the seller was notinterested either way and he was only interested in getting his balance saleconsideration and to execute the sale deed. It was submitted that though thequestion of payment of interest was considered in some of the interimorders REFERRED TO to earlier, the question about the liability of the seller tocapital gains tax or wealth tax was not taken into consideration. Mr. Harbans Lal said that the seller could be saddled with the liability of Capitalgains tax or in any case he would be subjected to wealth tax. He said theseller had purchased the plot in question for a total consideration of Rs. 4007. 66 while he was selling the same for an amount of over Rs. 28 lakhs. Because of these consideration it was submitted that the order for payment ofinterest at the time of disposal of the writ petition would not be just. Hesaid where the question of payment of interest was considered the propertywas built up andeither the sailer or the purchaser was in enjoyment of theseme. That would not be the case here as the subject property is a plot ofland. Counsel appearing for the petitioner and the Department were notquite sure about the applicability of the provisions of the Capital Gainsunder the Act and the Wealth Tax Act and rightly so as those are thequestions which would be determined by the Income Tax Authorities atappropriate time. ( 6 ) A look at certain provisions of Cap. XXC of the Act in so faras those are relevant to the present controversy would be quite appropriateat this stage. ( 6 ) A look at certain provisions of Cap. XXC of the Act in so faras those are relevant to the present controversy would be quite appropriateat this stage. Under S. 269ua (f), transfer means transfer of property byway of sale or exchange or lease for a term of not less than twelve years andincludes allowing the possession of such property to be taken or retained inpart performance of a contract of the nature REFERRED TO to in S. 53a of thetransfer of Property Act 1982. Before effecting transfer of any immovableproperty, both the transferor and the transferee have to enter into an agreement for transfer, which is to be in writing, at least three months beforethe intended date of transfer and then a statement in the form prescribedis to be furnished to the appropriate authority, (S 279uc ). Unders. 269ud. appropriate authority may make an order for the purchase by thecentral Government of such immovable property at the amount for whichthe property was agreed to be sold called the apparent consrderation . Acopy of such order is to be served on the transferor, the transferee and theperson in occupation of the immovable property or on any other interestedperson. When such an order under S. 269ud is made the immovablepropetty shall, on the date of such order, vest in the Central Governmentfree from all encumbrances but this does not operate to discharge thetransferor from liability in respect of any encumbrances on the property andthat can be enforced against him, (S. 269ue ). On the making of the orderunder S. 569ud, the Central Government shall pay by way of considerationfor such purchase, an amount equal to the amount of apparent consideration (S. 269uf ). This amount is to be paid by the Central Governmentwithin a period of one month from the end of the month in which theproperty becomes vested in the Central Government, (S. 269ug ). On thefailure on the part of the Central Government to make the payment withinthe period specified, the order passed under S. 269ud shall stand abrogatedand the immovable property shall stand re-vested in the transferor afterthe expiry of that period. (S 269 UH ). Then, there are provisions inchap XXC putting restrictions on the revocation or alteration of the agreement for transfer of the property, restrictions on registration, etc. andimmunity to transferor against claims of the transferee for transfer. Unders. (S 269 UH ). Then, there are provisions inchap XXC putting restrictions on the revocation or alteration of the agreement for transfer of the property, restrictions on registration, etc. andimmunity to transferor against claims of the transferee for transfer. Unders. 269un, the order of the appropriate authority passed under S 269ud isfinal and conclusive. ( 7 ) transfer under S. 2 (47) in relation to a capital asset, includes,- " (I) the sale, exchange or relinquishment of the asset; or (ii) the extinguisbment of any rights therein; or (Hi) the compulsory acquisition thereof under any law; or (iv ). . Under S. 45 of the Act any profits or gain arising from the transfer of acapital asset effected in the previous year shall, save as otherwise providedin Ss. 43, 54, 54b, 54d, 54e and 54f, be chargeable to income-tax under thehead, capital gains , and shall be deemed to be the income of the previousyeai in which the transfer took place. As the law stands today, it may bepossible for the seller to arrange his affairs in such a way that no capital gainarises from the transfer of a capital asset. Under S. 2 (e) of the Wealth Taxact, 1957. "assets" includes property of every description, movable orimmovable, and then there are certain exceptions. "transfer" as defined ins. 269 UA (f) would appear to be applicable for the purpose of Chap. XXCalso. ( 8 ) IN Pandit Lakshml Kant Jha v. Commissioner of Wealth tax (1973) 90 1. T, R. 97), one of the questions before the Supreme Court waswhether any part of the amount fixed as compensation payable to the assesseeunder the Bihar Land Reforms Act, 1950 was liable for inclusion in the totalwealth of the assessee. The contention raised was that the compensationpayable under that Act did not constitute an asset as could be taken intoaccount in computing the total wealth of the assessee. Perusal of the differentprovisions of the Act showed that as soon as the estate or tenure of aproprietor or a tenure holder vested in the State, he became entitled toreceive compensation and the fact that the payment of compensation interms of the provisions of the said Act might be deferred and be spread overa number of years did not affect the right of the proprietor or tenure holderto the compensation. The Supreme Court, therefore, was of the view thatthe assessee was vested with a right to get compensation immediately hisland was vested in the State. It thus held that the definition of the assets as given S. 2 (e) of the Wealth Tax Act, though not exhaustive, showed itswide amplitude and there was no reason as to why the right to receive thecompensation could not be included amongst the assets of the assessee. Incommissioner of Income Tax, West Bengal II v. Hindustan Housing and Landdevelopment Trust Ltd. (1986) 161 I. T. R. 524), the Supreme Court observedthat there was a clear distinction between cases where the right to receivepayment was in dispute and it was not a question of merely quantifying theamount to be received, and cases where the right to receive payment wasadmitted and the quantification only of the amount payable was left to bedetermined in accordance with settled or accepted principles, to this casecertain land of the assessee was first requisitioned and then compulsorilyacquired by the State Government. The Land Acquisition Officer awardeda certain amount as compensation, which was enhanced by the arbitrator. The Supreme Court was considering if the enhanced amount of compensation could be taxed as the income of the assessee for a particular assessmentyear. ( 9 ) CONSIDERING the facts of the present case and the aforesaidprovisions of law, the seller has raised important questions requiringimmediate determination, particularly when it cannot be said as to when thewrit petition would itself be disposed of. In fact, we have been told that thesupreme Court is seized of the matter and various writ petitions pending inthis court are awaiting the decision of the Supreme Court though, as notedabove, it was submitted that the seller might not be subjected to eithercapital gains tax or the wealth tax. but nobody is quite sure about the exactposition. We do not want to say anything on the subject as the matter willhave to be dealt by the income-tax and wealth-tax authorities under theprovisions of the law but then the seller may beinvolved in legal battleswith the Income Tax Depanment which are not of his making It is thetransferee, the petitioner, who has come to this court seeking stay of lheoperation of the order passed under S. 269ud of the Act by the appropriateauthority. He has challenged the constituitonal validity of Chap. He has challenged the constituitonal validity of Chap. XXC ofthe Act, and on that account further action by the Central Government hasbeen stayed. The seller is not challenging the order of the appropriateauthority. If the purchaser, the petitioner, succeeds the seller has only toexecute the sale deed and get it registered after receiving the balance of thesale consideration. At the moment, the petitioners action has deprived himof the balance sale consideration. The Central Government is sitting tightas it need not make any payment in view of the interim orders and it alsocannot get possession of the property because of the said interim orders. The seller is prepared to pass over the possession to anyone. It was submittedby Mr. D. K. Jain, learned counsel for the Income Tax Department, that theproperty was to be reauctioned as bad been done in the cases of numerousother properties which had vested in the Central Government under theprovisions of Chap. XXC of the Act. ( 10 ) IN the circumstances of the present case, we are of the opinionthat we should direct the petitioner to make payment of balance of the saleconsideration to the transferor, the 4th respondent, subject to certain termsand conditions and further orders of the court. In that case, if the petitionersucceeds in the writ petition nothing more is required except for the seller toexecute and register the sale deed. If, however, the petitioner fails, he canbe compensated with interest by the Central Government. It is a matter ofcommon knowledge that there is always appreciation in prices of immovableproperties and in fact, in Delhi there has been astronomical rise in prices ofland in the recent past. ( 11 ). We, therefore, direct as under- (I) The balance sale consideration amounting to Rs. 18,19,178. 00and any other amount as may be due to the seller, shall be paidby the petitioner to the seller, the 4th respondent, within twomonths from today; (II) The 4th respondent shall invest the amount of the sale consideration liable to capital gains tax under Ss. 54d; 54b, or 54fof the Act as the case may be or any other capital gains taxavoidance scheme and shall not be entitled to use that moneyduring the pendency of the writ petition or without furtherorders of the court and he shall file an undertaking to thateffect within two weeks with the Registrar of this court. 54d; 54b, or 54fof the Act as the case may be or any other capital gains taxavoidance scheme and shall not be entitled to use that moneyduring the pendency of the writ petition or without furtherorders of the court and he shall file an undertaking to thateffect within two weeks with the Registrar of this court. In theevent, the petitioner succeeds in the writ petition, the 4threspondent shall execute the sale deed and get it registered interms of the agreement for transfer between the parties. (III) In case the petitioner commits default in making payment ofthe balance consideration as aforesaid, the interim orders madeearlier shall stand vacated and necessary consequences ascontained in Chap. XXC of the Act shall follow as from thedate when the stay stands vacated. (IV) The property in question shall be in custodia legis and theconcerned Commissioner of Income Tax is appointed Receiverof the same. Tins is necessary in order to preserve the propertyso that there are no squatters or unauthorised occupants. The4th respondent shall file an undertaking to that effect with theregistrar of this court that there are presently no suchsquatters or unauthorised occupants. The property shall besecured by fixing barbed wire fencing all around by the Incometax Department and the costs so incurred by it shall be subjectto the orders of this court at the time of the decision of thewrit petition. (V) On petitioner failing in the writ petition, the Central Government shall pay to the petitioner the amount of the apparentconsideration and also interest thereon at such rate and forsuch period as may be determined at the time of decision of thewrit petition. This we are so directing as otherwise the Centralgovernment would have to make payment of the apparentconsideration to the purchaser. ( 12 ) TO the extent aforesaid, the interim orders made on 22. 11. 1988shall stand modified. ( 13 ) CMS. No. 5297 and 5535 of 1988 stand disposed of.